Colman Herman v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20200751)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2020 SPR20/0751 Valerie Connolly Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Colman Herman appealing the response of the Secretary of the Commonwealth – Administrative Services Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 24, 2020, Mr. Herman requested all communications related to a particular public records request he made to the Division. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Valerie Connolly SPR20/0751 Page 2 May 19, 2020 Current appeal In its May 7th response, the Division informed Mr. Herman, “[a]fter an extensive search, no responsive records were found.” In his May 8, 2020 petition, Mr. Herman asserts, “[t]his [May 7th] response lacks credibility…the processing of my March 9 and 24, 2020 public records request must have at least involved emailing the records’ custodians by Ms. Connolly.” On May 20th, the Division again informed this office that it has no records responsive to Mr. Herman’s March 24th request for communications. Under the Public Records Law, the Division is not required to create a record or records in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records. See G. L. c. 66, § 10(a)(ii). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions posed by a requestor. Conclusion Given that the Division is under no duty to create records in response to Mr. Herman’s March 24th request, I consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman